OUR VIEW: A new civil rights phase on same-sex marriage

Thursday

Jan 2, 2014 at 12:01 AMJan 2, 2014 at 2:17 AM

Even by the standards of 2013, an extraordinary year for gay rights — during which more than half of the 18 states that now recognize same-sex marriages were added to the list and the Supreme Court struck down part of the federal Defense of Marriage Act — the last couple of weeks have been remarkable. Within a few days, courts made gay marriage legal in New Mexico and Utah, and a ruling in Ohio forced some state recognition of such marriages.

Even by the standards of 2013, an extraordinary year for gay rights — during which more than half of the 18 states that now recognize same-sex marriages were added to the list and the Supreme Court struck down part of the federal Defense of Marriage Act — the last couple of weeks have been remarkable. Within a few days, courts made gay marriage legal in New Mexico and Utah, and a ruling in Ohio forced some state recognition of such marriages.

But those recent court decisions have also fed the long-standing perception among conservatives that gay marriage has been pushed through by "activist judges" forcing their personal beliefs on an unwilling populace. In fact, most of the states where marriage is recognized got to this stage through votes, mainly by state legislatures but in a few cases by the people themselves through ballot measures. Of the 18 states, only seven, including California, legalized gay marriage through court decisions.

It is, of course, preferable for progressive marriage laws to reflect the will of the people. In states that have voted for same-sex marriage, the laws are robust reflections of public acceptance. They are less susceptible to resentment and challenge.

But, in truth, the road to civil rights historically has involved a mix of approaches - popular opinion, lawmaking and court ruling - each affecting the others.

Here in Massachusetts, a court ruling forced the issue 10 years ago, at a time when polls showed it would not have been approved by popular vote. But years of political jockeying followed, with elected legislators eventually deciding not to let the court’s ruling be challenged. Ten years later, a new poll found that most Bay State voters believed the law had had no negative effects on the state, and 60 percent favored recognition of same-sex marriage.

As a growing number of states have sanctioned gay marriages, more Americans have had an opportunity to observe that they have no effect on traditional heterosexual marriage, which in turn leads to more acceptance and more laws passed. And societal recognition has an effect on judges, whose decisions have reflected that growing acceptance at the same time that they have been ahead of it.

Now, the fight for same-sex marriage is entering a new phase. The low-hanging fruit — states without strong laws banning gay marriage and with more progressive populations — is pretty much picked and the new battles will be in stiffly resistant territory. In 32 states, same-sex marriage is banned by a combination of laws and constitutional amendments, which means change is less likely to come via popular or legislative votes. Courts will play a bigger role.

One thing, though, is certain. Despite anger toward these supposedly anti-democratic decisions, judicial rulings have a necessary role to play in the advancement of civil rights, even when public and legislative opinion isn't on the same side. Especially when it isn't.